1. Summarize the Cumberland Shoe doctrine.2. What did the Supreme

1. Summarize the Cumberland Shoe doctrine.
2. What did the Supreme Court say about the Board’s Cumberland doctrine?
3. Did the Supreme Court hold that the Taft- Hartley amendments limited an employer’s duty to bargain under Section 8(a)(5) solely to those unions whose representative status was certified after a Board election?
4. Under Gissel, when may the Board issue a bargaining order remedy?

[The portion of this case dealing with Sinclair’s First Amendment challenges to the holding of the Board and the Court of Appeals for the First Circuit (Case No. 585) is reported in Section 4:14.]

[Three cases from the Fourth Circuit—Gissel, Heck’s, and General Steel—were consolidated with the Sinclair case for the Court’s consideration. In each of the Fourth Circuit cases, the union obtained authorization cards from a majority of the employees in an appropriate bargaining unit and demanded recognition. In each instance, the employer refused to recognize the unions on the ground that authorization cards were inherently unreliable indicators of employee desires. Each employer then waged an antiunion campaign, during which it committed numerous unfair labor practices. In Gissel and Heck’s, the Board ordered the employers to bargain even though an election had not been held. In General Steel the Board set aside the election, which the union had lost, and the employer was ordered to bargain on the basis of preelection unfair labor practices. In each case the Board ruled that the union had valid authorization cards from a majority of the employees in an appropriate unit, and, found that the employer’s refusal to bargain “was motivated not by a ‘good faith’ doubt of the unions’ majority status, but by a desire to gain time to dissipate that status.” The Fourth Circuit refused to enforce the Board’s orders to bargain, but affirmed the other unfair labor practice findings. The facts in Sinclair were similar to the Fourth Circuit cases, but the First Circuit enforced the Board’s order.]


The specific questions facing us here are whether the duty to bargain can arise without a Board election under the Act; whether union authorization cards, if obtained from a majority of employees without misrepresentation or coercion, are reliable enough generally to provide a valid, alternate route to majority status; whether a bargaining order is an appropriate and authorized remedy where an employer rejects a card majority while at the same time committing unfair labor practices that tend to undermine the union’s majority and make a fair election an unlikely possibility; and whether certain specific statements made by an employer to his employees constituted such an election-voiding unfair labor practice and thus fell outside the protection of the First Amendment and Section 8(c) of the Act. For reasons given below, we answer each of these questions in the affirmative….

…Under the Cumberland Shoe doctrine, if the card itself is unambiguous (i.e., states on its face that the signer authorizes the Union to represent the employee for collective bargaining purposes and not to seek an election), it will be counted unless it is proved that the employee was told that the card was to be used solely for the purpose of obtaining an election....

The first issue facing us is whether a union can establish a bargaining obligation by means other than a Board election and whether the validity of alternate routes to majority status, such as cards, was affected by the 1947 Taft-Hartley amendments. The most commonly traveled route for a union to obtain recognition as the exclusive bargaining representative of an unorganized group of employees is through the Board’s election and certification procedures under Section 9(c) of the Act; it is also, from the Board’s point of view, the preferred route. A union is not limited to a Board election, however….

In short, we hold that the 1947 amendments did not restrict an employer’s duty to bargain under Section 8(a)(5) solely to those unions whose representative status is certified after a Board election.

We next consider the question whether authorization cards are such inherently unreliable indicators of employee desires that whatever the validity of other alternate routes to representative status, the cards themselves may never be used to determine a union’s majority and to support an order to bargain....

That the cards, though admittedly inferior to the election process, can adequately reflect employee sentiment when that process has been impeded, needs no extended discussion, for the employers’ contentions cannot withstand close examination. The employers argue that their employees cannot make an informed choice because the card drive will be over before the employer has had a chance to present his side of the unionization issues. Normally, however, the union will inform the employer of its organization drive early in order to subject the employer to the unfair labor practice provisions of the Act; the union must be able to show the employer’s awareness of the drive in order to prove that his contemporaneous conduct constituted unfair labor practices on which a bargaining order can be based if the drive is ultimately successful....

The employers’ second complaint, that the cards are too often obtained through misrepresentation and coercion, must be rejected also in view of the Board’s present rules for controlling card solicitation, which we view as adequate to the task where the cards involved state their purpose clearly and unambiguously on their face. We would be closing our eyes to obvious difficulties, of course, if we did not recognize that there have been abuses, primarily arising out of misrepresentations by union organizers as to whether the effect of signing a card was to designate the union to represent the employee for collective bargaining purposes or merely to authorize it to seek an election to determine that issue. And we would be equally blind if we did not recognize that various courts of appeals and commentators have differed significantly as to the Board’s Cumberland Shoe doctrine to cure such abuses.

In resolving the conflict among the circuits in favor of approving the Board’s Cumberland rule, we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election. Elections have been, after all, and will continue to be, held in the vast majority of cases; the union will still have to have the signatures of 30 percent of the employees when an employer rejects a bargaining demand and insists that the union seek an election. We cannot agree with the employers here that employees as a rule are too unsophisticated to be bound by what they sign unless expressly told that their act of signing represents something else. In addition to approving the use of cards, of course, Congress has expressly authorized reliance on employee signatures alone in other areas of labor relations, even where criminal sanctions hang in the balance, and we should not act hastily in disregarding congressional judgments that employees can be counted on to take responsibility for their acts....


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